Trinity College v. City of Hartford

32 Conn. 452 | Conn. | 1865

Park, J.

In making public improvements damages result to some individuals and benefits are conferred upon others as a necessary consequence. Public necessity requires the laying out of a highway. This can not be done without land. Proprietors along the line of the proposed way must furnish it and damages resjult in consequence. The highway when constructed opens an avenue of public travel, which renders the residences in its vicinity more convenient and agreeable, and consequently more desirable. It brings building lots into market that previously were not available. It builds up a community in a region sparsely inhabited. It shortens the distance to market; and in various other ways enhances the value of adjoining lands. These are the benefits conferred; but such consequences form no part of the object in view in constructing highways. They are laid out to satisfy public necessity. Whether the benefit to one individual will be greater or less than that to another, after paying just compensation for damages to land and the expenses incurred in constructing the road, the public authorities do not stop to inquire. Such benefit is left in the possession of those who are so fortunate as to receive it, owing to the fact that no other person can claim it by any superior title.

These benefits are however, within certain limits prescribed by the charter and ordinances of the city of Hartford, liable to assessment for the purpose of paying damage's and expenses in laying out streets within the city; and the petitioners admit this liability, but contend that _tlie commissioners of compensation, and the judge who heard the case upon appeal from them, erred in the principle upon which they proceeded in assessing the damage of the petitioners, inasmuch as they applied the entire benefit received by them to the damage, instead of applying their pro rata share of the benefit. They indeed contend that the assessment of benefits should be made by a distinct board from that which assesses the damage, but obviously it can make no difference whether they are done by separate boards or by one board, so long as the correct principle is adopted in making the estimates.

There are obviously three classes of benefits that may result from the opening of highways;—one, the general benefit which the public as such receive from the opening of a new avenue of travel;—another, the special benefits which those receive who reside or own land upon the new highway, in the more convenient access that is given to their lands;—and another, the strictly local benefit which land as such may receive from the opening and construction of the road ; an illustration of which would be drainage, if it should happen to be drained by the road and its ditches, or the filling up of low ground by surplus earth that has to be disposed of in lowering some neighboring hill. A.s to the character of these classes of benefits, and as to their general relation to the road with reference to questions of assessment and damage, there seems to be no serious difference between the claims of the parties. The mere public benefit can not be assessed at all, and is only to be considered with reference to the question how much of the expense of the road shall be paid by general taxation. The merely local benefit is clearly to be deducted from the damage that would be allowed the owner for the part of his land taken for the road, and it goes so far to reduce the actual damage done to him in faking his land. The special benefits, within the limits fixed by the law, are clearly to be considered in assessing benefits ; and if nothing was to be done except to assess the benefits, there would probably be no difference of opinion as to the rule to be adopted in determining the proportions in which the burden of the road should be laid upon the benefits. The sole question is in the case where the same person has received benefits and has also a claim for damages. We will suppose his claim for damages is $1,00.0, that he gets no local benefit, and that his special benefit is exactly $1,000. Now if he had received only a benefit, and was assessed for that benefit with all the other persons enjoying special benefits, he probably would be assessed only a moderate percentage upon it. We will suppose that assessment would be 10 per cent., so that he would be called on to pay $100 on account of his having received $1,000 of benefit. Now the counsel for the petitioners contend that where the same person has a claim for $1,000 damage he should not have the whole benefit he has received applied to the damage, satisfy, ing it in full and leaving him nothing, but that only the 10 per cent, which he would have been assessed for his benefit, if the benefit had been independently assessed, should be so applied, and the balance, $900, should be paid him for his damage. There is much that is plausible in this claim, and it is not altogether unreasonable. But the rule has long been settled in this state, not only in practice, but by repeated decisions of this court, that where a land-owner has a claim for damage for land taken, and has received local and special benefits equal to the damage, the value of the benefits shall be set off against the damage and he shall be allowed nothing. It is true that his entire benefit may be exhausted in this application, while the benefits received by his neighbors are assessed only a small percentage, and thus there may be a seeming and perhaps a real inequality, but so long as- his benefit equals his damage he can not bo said to have suffered by the laying out of the road, and there would be an injustice in compelling others to pay him for damage that really has no existence. Whatever may be said against the reasonableness and justice of this rule, it is too well settled in this state to be shaken, and is one so simple in its application, and that does on the whole so little real injustice, that we should not be disposed to change the rule if we felt perfectly at liberty to do so.

The principal decision upon the subject in this court -is in the case of Nichols v. The City of Bridgeport, 23 Conn., 189, in which also the previous case of Nicholson v. The New York & New Haven R. R. Co., 22 Conn., 174, which declares the same principle, is commentéd on and approved. In the latter case it is held that the special benefits which a land-owner receives from the construction of a public improvement are to be deducted from the damage which would otherwise be allowed him; and in the former case that where such benefit is equal to or greater than the damage sustained, it can not be said that the party has suffered by the improvement, and that he is therefore entitled to no damage for the taking of his land. These decisions fully sustain us in the view we have taken, and the same view is supported by numerous decisions in other states. Commonwealth v. Coombs, 2 Mass., 492; Commonwealth v. Sessions of Norfolk, 5 id., 437; White v. County Commissioners of Norfolk, 2 Cush., 361; Meacham v. Fitchburg R. R. Co., 4 id., 291; Upton v. So. Reading Branch R. R. Co., 8 id., 600; Shaw v. City of Charlestown, 2 Gray, 107; Dickinson v. Inhabitants of Fitchburg, 13 id., 546; Livingston v. City of New York, 8 Wend., 85; Betts v. City of Williamsburgh, 15 Barb., 255; The People v. City of Brooklyn, 4 Comst., 420; McMasters v. The Commonwealth, 3 Watts, 292; Symonds v. City of Cincinnati, 14 Ohio S. R., 147; Alexander v. City of Baltimore, 5 Gill, 383; Livermore v. Jamaica, 23 Verm., 361.

It is further claimed, that it does not appear that the commissioners of compensation possessed the qualifications required by the ordinance of the city, or that they had been sworn as the ordinance requires. This objection no doubt would be fatal to the proceedings, unless it appears that commissioners of compensation, when duly appointed, are public officers. They are appointed to hold office during the pleasure of the court of common council, and their duties are to appraise all land damages in cases where land is required for city improvements. It is difficult to see why the ordinance does not constitute them public officers. Suppose the law required that every city and town should annually appoint a person to appraise all land taken for public use within the limits of the city or town; can any one doubt but that the person so appointed would be as much a public officer as a selectman or grandjuror is ? He acts for the public in all cases within his jurisdiction, whether few or many. He is appointed, not with reference to one case in particular, which was the case in Judson v. The City of Bridgeport, 25 Conn., 426, and Nichols v. The City of Bridgeport, but for all cases then existing and future. Such is the case with the commissioners of compensation. Every public officer has a particular class of duties to perform. A selectman can not perform the duties of a grandjuror, neither can a grandjuror perform the duties of a selectman. The duties of each are particularly defined. Why is a grandjuror a public officer ? If he was appointed to make complaint of a particular case, and that only, very clearly he would not be ; but he is appointed to make complaint of all breaches of the law within his jurisdiction that come to his knowledge, and it is this that constitutes him a public officer. So in the case under consideration. If the commissioners of compensation had been appointed for this particular case only, so that their duties would have begun* and ended with the case, then very clearly they would not have been public officers, and the case would come within the principle of the cases cited, and the objection would have been fatal. But like the grandjuror they were appointed for no case in particular, but were appointed to appraise all land damages, in all cases where land should be required for city improvements, during their term of office. What distinction then can be made in the two cases ? Both act for the public in a public capacity. Both have jurisdiction of all cases within their particular line of duties that may transpire within the limits of the city and town during their term of office. It certainly can make no difference that the tenure of office of the commissioners is made to depend upon the will of the appointing power, for duration, in office is no element that enters into the definition of the term public officer. Neither can it make any difference that they hold office under an ordinance passed by the court of common council, for the charter of the city authorized them to pass the ordinance, and when passed it has all the force of a statute law. A majority of the court are of the opinion that they are public officers.

It appears by the finding that the court of common council appointed the commissioners of compensation to fill the office created by the ordinance. They acted therefore under color of title to the office, and are officers de facto, and their acts are binding between third parties. Plymouth v. Painter, 17 Conn., 585; Monson v. Hunt, id., 566; Wickwire v. The State, 19 id., 477; Douglass v. Wickwire, id., 489; Smith v. The State, id., 494; Angell & Ames on Corp., §§ 139, 140, 287; Fowler v. Bebee, 9 Mass., 231; Moore v. Graves, 3 N. Hamp., 408; Morse v. Calley, 5 id., 223; Cocke v. Halsey, 16 Pet., 85; The People v. Bartlett, 6 Wend., 422. A majority of the court are of the opinion that there is no objection to the proceedings on this ground.

These considerations apply with equal force and effect to the appointment of the highway committee.

Again it is claimed, that it does not appear that the highway committee made any proper attempt to agree with the petitioners in respect to the amount of damages to be paid them. The finding shows that the highway committee, through their chairman, applied to the president and treasurer of the petitioners, in order to agree with them as to the amount of damages to be paid the petitioners, and the president and treasurer refused to act upon the subject, on the ground that they were not authorized ; and that afterwards the chairman, acting- for the committee, applied to the commissioners of compensation to appraise the damages. It appears further, that when the commissioners met for the purpose of appraising the damages, the president and treasurer, and one of the trustees of the petitioners, appeared before them and were heard, and that they protested against the laying out of the highway. It appears further, that the committee in 1864 made a report to the court of common council, stating among other proceedings in the case that they had failed to agree with the petitioners as to the amoimt of damages, and the report was accepted. We think that enough appears in the finding of facts to warrant the committee in calling upon the commissioners of compensation to appraise the damages. Nichols v. The City of Bridgeport, supra.

We therefore advise the superior court to dissolve the injunction and dismiss the bill.

In this opinion Hinman, O. J., and Butler, J., concurred. McCurdy, J., concurred in the views expressed with regard to the principles upon which damages are to be estimated in such a case, but was of opinion that it should appear upon the face of the proceedings that the commissioners of compensation had the qualifications required by-law. Dutton, J., having tried the case in one of its branches in the court below, did not sit.